Document 26
Filed 12/20/2007
Page 1 of 19
IN THE UNITED STATED DISTRICT COURT FOR THE DISTRICT OF DELAWARE THE UNITED STATES LIFE INSURANCE COMPANY IN THE CITY OF NEW YORK, Plaintiff, v. JAMES R. WITHROW and MYUNG PHAM LEGRO. Defendants. : : : : : : : : : : : : :
C.A. No. 07-511-LPS
DEFENDANT MYUNG PHAM LEGRO'S OPENING BRIEF IN OPPOSITION TO JAMES R. WITHROW'S MOTION ENFORCE STIPULATED JUDGMENT
J. Breck Smith, Esquire (No. 2937) Seth Niederman, Esquire (No. 4588) Sophia Siddiqui, Esquire (No. 4914) FOX ROTHSCHILD LLP Citizens Bank Center 919 N. Market Street, Suite 1300 Wilmington, DE 19801 (302) 622-4211 Attorneys for Defendant, Myung Pham Legro
Date: December 20, 2007
WM1A 239802v3 12/20/07
Case 1:07-cv-00511-LPS
Document 26
Filed 12/20/2007
Page 2 of 19
TABLE OF CONTENTS I. II. III. NATURE AND STAGE OF PROCEEDINGS...................................................................1 SUMMARY OF ARGUMENT...........................................................................................2 STATEMENT OF FACTS..................................................................................................3
IV. ARGUMENT ....................................................................................................................10 A. Standard of Review .....................................................................................................10 B. The Stipulated Judgment And Order is Not Valid or Enforceable Under Delaware Law. .............................................................................................................................10 C. A Valid and Binding Contract Was Never Entered Into By The Parties. ...................12 D. The Stipulated Judgment and Order is An Unenforceable Contract Because Myung Has Met The Elements of The Defense of Duress. .....................................................12 E. Withrow Should Not Be Awarded Attorneys' Fees Associated With Bringing His Motion to Enforce Stipulated Judgment And Order. ...............................................14 V. CONCLUSION .................................................................................................................16
WM1A 239802v3 12/20/07
Case 1:07-cv-00511-LPS
Document 26
Filed 12/20/2007
Page 3 of 19
TABLE OF AUTHORITIES Cases Page
Haft v. Dart Grp. Corp., 841 F.Supp. 549, 573 (D.Del. 1993).........................................12 Intellisource Grp., v. Williams, 1999 WL 615114, at *5 (D.Del. Aug. 11, 1999) .................................................10 Leonard v. University of Delaware, 204 F.Supp.2d 784, 787 (D.Del. 2002) ...............................................11,12,14,15 Ryan v. Weiner, 610 A.2d 1377, 1380 (Del. Ch. 1992) ........................................................12,14 In re: Elonex Phase II Power Mgmt. Litig., 2003 WL 21460391, at *3 (D.Del. 2003) ................................................10,14,15 Hobbs v. Am. Investors Mgmt., Inc., 576 F.2d 29, 35 (3d Cir. 1978) ...................................................................14
ii
WM1A 239802v3 12/20/07
Case 1:07-cv-00511-LPS
Document 26
Filed 12/20/2007
Page 4 of 19
I.
NATURE AND STAGE OF PROCEEDINGS On August 21, 2007, United State Life Insurance Company in the City of New York
("US Life") filed an Interpleader Complaint. On August 27, 2007, US Life filed a Motion Authorizing Payment of Funds Into Court. On October 26, 2007, US Life filed a Stipulated Judgment and Order with the Court. On October 31, 2007, Magistrate Judge Leonard P. Stark of the United States Court for the District of Delaware held a teleconference to address Plaintiff's Interpleader Complaint. Counsel for US Life and counsel for Defendant James R. Withrow ("Withrow") participated in the teleconference. Defendant Myung Pham LeGro ("Myung") did not participate in the
teleconference. During the teleconference, the Court declined to sign the Stipulated Judgment and Order. On November 28, 2007, the United States District Court for the District of Delaware granted US Life's Motion for Deposit of Funds with the Clerk of Court and Requiring Defendants to Interplead. Withrow filed an Answer to Interpleader Complaint and Crossclaim on December 7, 2007. Myung filed her Answer to Interpleader Complaint on the same date.
WM1A 239802v3 12/20/07
Case 1:07-cv-00511-LPS
Document 26
Filed 12/20/2007
Page 5 of 19
II.
SUMMARY OF ARGUMENT The Stipulated Judgment and Order signed is not a valid and binding agreement under
Delaware law because the parties did not mutually assent to its terms and it was never signed by the Court. Moreover, Myung signed the Stipulated Judgment and Order under duress.
2
WM1A 239802v3 12/20/07
Case 1:07-cv-00511-LPS
Document 26
Filed 12/20/2007
Page 6 of 19
III.
STATEMENT OF FACTS Myung Pham LeGro ("Myung") is a Vietnamese immigrant who came to the United
States in 1975. Seven of her brothers and sisters, including her sister, Lisa P. Withrow ("Lisa"), emigrated to the United States. Lisa was married to James R. Withrow ("Withrow") before her death on May 24, 2007. Lisa was employed by Platex Products, Inc. ("Playtex"). In connection with her
employment, Lisa was issued a United States Life Insurance Company in the City of New York life insurance policy (the "Policy"). In April, 2007, Myung received a call from her family in Vietnam that her sister Lisa was very sick and was going to die. Myung, who lived in Herdon, Virginia, immediately contacted her sister. Lisa was crying on the phone, stating that she was in severe pain, could not eat, and feared she had cancer. Lisa also said that she wanted a divorce from her husband. Myung advised her sister to go to the hospital immediately. Lisa was diagnosed with cancer and had abdominal surgery shortly thereafter. On April 28, 2007, Myung and her husband, Colonel William E. LeGro, USA Ret., drove from Virginia to visit Lisa in the hospital. After returning home to Virginia, Myung told Withrow that she would return to visit Lisa soon because Lisa was alone and very unhappy. Withrow told Myung to wait a few days because he was going to move her to a cancer recovery center in Wilmington, Delaware. Approximately one day later, Myung contacted Withrow again regarding her sister's condition only to find out that Withrow had placed Lisa in a nursing home in Dover, Delaware. When Myung spoke with Lisa, she said that she had been left in the nursing home to die and that her husband and daughter did not want to care for her at home. Lisa also told Myung that Withrow had said he wanted Lisa to die. Lisa said that she wanted to divorce Withrow and that
3
WM1A 239802v3 12/20/07
Case 1:07-cv-00511-LPS
Document 26
Filed 12/20/2007
Page 7 of 19
he was an irresponsible husband, who ignored her illness and never took the time to take her to the right doctors. Myung assured her sister if she was released, she would come to stay with her. Two days later, in early May, 2007, Withrow contacted Myung and told her Lisa had checked herself out of the nursing home. Withrow requested her help. Myung traveled to Delaware to take care of her sister. Lisa's doctor advised that Lisa was well enough to go home. Consistent with Lisa's wishes, Myung took Lisa back to her home in Delaware and cared for her day and night, sleeping on the floor next to her bed. On or about May 11, 2007, Withrow, Lisa and Myung traveled to the Social Security Office in Delaware in order to claim her social security disability benefits, which she could claim upon her turning sixty-five years of age. During that car ride, Lisa told Withrow that she was going to change the beneficiary on the Policy from Withrow to someone else because Withrow would receive several other benefits when she died. Lisa did not indicate to Myung or Withrow who the new beneficiary would be. Upon arriving at the Social Security Office, Lisa signed the papers to claim her social security benefits. Upon arriving home, Lisa told Myung that she had asked Playtex to mail her a form, and that Myung should check the mailbox. The form did not arrive. A week after arriving home, in mid-May, 2007, Lisa's condition worsened and she returned to the hospital. Myung stayed by her side at the hospital, helping her with meals, keeping her clean, and providing emotional support. Lisa was lucid and mentally competent until the day of her death. She greeted her many visitors enthusiastically and conversed alertly with the doctors and nurses. Although she was physically sick, heavy pain medication was not administered until twelve hours before Lisa's death so that she would die peacefully. Before that time, Lisa only took Tylenol for the pain. Lisa always asked the nurses and her sister what
4
WM1A 239802v3 12/20/07
Case 1:07-cv-00511-LPS
Document 26
Filed 12/20/2007
Page 8 of 19
medications they were giving her and what they were for because she did not want to take anything that would put her to sleep. Lisa told Myung she did not want to die in her sleep. On or about May 21, 2007, a representative from Playtex came to the hospital with an envelope for Lisa, who was asleep. The Playtex representative handed the envelope to Myung and asked that she give it to her sister when she awoke. The representative said that he could not wait for Lisa to awaken and would return tomorrow. Myung gave the envelope to Lisa when she awoke, Lisa looked at it, and asked Myung to put the envelope in her bag until later. The next day, two or three days before Lisa's death on May 24, 2007, two women representatives from Playtex arrived at the hospital. One of the representatives helped Lisa fill out the change-in-beneficiary form and both representatives witnessed Lisa fill out and sign the form, naming Myung as the beneficiary of the Policy. Myung was present as this happened. Lisa asked Myung to give the representative her address and social security number. Myung handed the Playtex representative her driver's license and told them her social security number. Myung did not assist in filling out the change of beneficiary form other than providing this information. The Playtex representatives then took the change in beneficiary form with them. Watching her sister die was physically and emotionally exhausting for Myung. During that time, Myung lost twenty pounds. She was so distraught, she could not attend Lisa's funeral. On June 11, 2007, Myung received an envelope from an unknown sender in Wilmington, Delaware. It contained two letters from Withrow's attorney explaining Withrow's challenge to Myung's right to the proceeds of the Policy, and enclosing a copy of the change in beneficiary form. See Copy of Change In Beneficiary Form attached hereto as Exhibit "A". Myung noticed that the date on the change in beneficiary form seemed to have been altered because her sister had signed the form at least two days before her death. Thereafter, on June 16, 2007, Myung
5
WM1A 239802v3 12/20/07
Case 1:07-cv-00511-LPS
Document 26
Filed 12/20/2007
Page 9 of 19
sent a letter to US Life, which her husband helped her draft, explaining the events as they had occurred. See Letter from Myung Pham LeGro to the US Life dated June 16, 2007 (also docketed with U.S. District Court for the District of Delaware) attached hereto as Exhibit "B"). In September, 2007, Myung was contacted by counsel for the United States Life Insurance Company in the City of New York ("US Life"). Counsel for US Life spoke with Myung and her husband and informed them that Withrow was challenging Myung's right to receive the proceeds of the Policy. Myung did not want to endure a fight over the Policy benefits and was afraid of being sued. Myung loved her sister and did not care for the money. Thus, she informed counsel for US Life by phone that she would give up her right to the proceeds of the Policy. Myung did not engage a lawyer because she did not think that it was necessary where she had done nothing wrong. On September 7, 2007, Myung received a threatening and disturbing letter from Withrow. See Letter from James R. Withrow to Myung Pham LeGro dated
September 7, 2007 attached hereto as Exhibit "C". In sum, Withrow alleged that Lisa was not competent to sign the change in beneficiary form, and that Myung took advantage of her sister's condition in order to obtain the proceeds of the Policy. See Exhibit "C" at p. 2 ("But, the best part of a jury case will be revealing your motivations for having the life insurance beneficiary designation change! You'll just have to wait until we appear in court to know what I have planned in this respect. Although it should be rather obvious."). Myung was shocked by Withrow's allegations. See Exhibit "C" at p. 3 ("I look forward to confronting you in a court of law! It will certainly be a pleasure. Then, when the procedure is settled, I will file another lawsuit against you for "Manipulation of a Mentally Infirm Person with intent of financial gain.
6
WM1A 239802v3 12/20/07
Case 1:07-cv-00511-LPS
Document 26
Filed 12/20/2007
Page 10 of 19
I will [e]nsure that we have a courtroom full of Lisa's family, friends, coworkers who knew us both quite well!"). On September 21, 2007, Myung received a letter from counsel for US Life enclosing a draft Stipulated Judgment and Order relinquishing any right she had to the proceeds of the Policy. See Letter from Carolyn S. Hake, Esquire to Myung Pham Legro dated September 21, 2007 attached hereto as Exhibit "D". The letter asked for Myung's signature and notified her of the extension of time for Defendants to answer the Interpleader Complaint until September 28, 2007. Myung responded to Ms. Hake's letter on September 27, 2007: I have told you that I intend to relinquish my right as beneficiary of my late sister's insurance policy, and I still plan to do so. However, before I sign the agreement you sent to me, I wish to be assured that you have had the form my sister signed naming my the beneficiary carefully examined. I have reason to suspect that it has been altered to mislead and to reflect that my sister signed it on the day before her death, when in fact I believe she signed it at least two days before she died . . . I do not want to fight for this money, to endure the stress of a trial far from my home, or to see Mr. Withrow or Delaware ever again. But I do not believe he should profit from fraud or forgery. That is what I believe may be happening here. If you can assure me that the circled date, "5/23/07," was written on the original document by my sister, and that this has been confirmed by a qualified expert, I shall sign the agreement you sent me. See Letter from Myung Pham LeGro dated September 27, 2007 to Carolyn S. Hake, Esquire (docketed with U.S. District Court for the District of Delaware) attached hereto as Exhibit "E". On October 4, 2007, counsel for US Life responded by letter to Myung that they could not provide any assurances to her because they had no interest in the proceeds of the Policy, and litigation would proceed in the event she did decided not to sign the Stipulated Judgment and Order. See Letter from Counsel for US Life dated October 4, 2007 attached hereto as Exhibit 7
WM1A 239802v3 12/20/07
Case 1:07-cv-00511-LPS
Document 26
Filed 12/20/2007
Page 11 of 19
"F". Counsel for US Life also indicated that responses to US Life's Interpleader Complaint and Motion would be due on November 1, 2007 in the event that Myung did not sign the Stipulated Judgment and Order. On October 15, 2007, Myung sent another letter to counsel for US Life, where she stated in pertinent part: You may disburse the proceeds as you see fit. I want nothing more to do with this case or with Mr. Withrow. It is not my way, or the Vietnamese way, to participate publicly in a family dispute. Mr. Withrow has threatened me in writing, with a lawsuit after this case is resolved, and he has threatened the Playtex employees who witnessed my sister's signature on the change-of-beneficiary form. Perhaps he will relent after he receives the money. See Letter from Myung Pham LeGro dated October 15, 2007 to Carolyn S. Hake, Esquire attached hereto as Exhibit "G". Myung felt threatened into giving up her rights and did not feel it was culturally appropriate to go to Court and endure a public battle over the proceeds of her sister's life insurance policy. Thereafter, Myung signed the Stipulated Judgment and Order. On October 26, 2007, US Life filed the Stipulated Judgment and Order with the Court. On October 31, 2007, Magistrate Judge Leonard P. Stark of the United States District Court In and For the District of Delaware held a teleconference with counsel for US Life and counsel for Withrow. See Transcript of Teleconference with Judge Stark dated October 31, 2007 in Civil Action No. 07-511 attached hereto as Exhibit "H". Myung was not present on the call. Judge Stark commented on the fact that Myung did not participate in the call: "I think I need to hear from her directly, one way or another, whether she actually is consenting. I'm not comfortable getting that consent through one of the parties. See Exhibit "H" at p. 4, lines 21-24. Moreover, Judge Stark rejected the suggestion by Withrow's counsel that the "matter is essentially closed." See Exhibit "H" at p. 5, lines 6-10. Judge Stark stated: Well, the problem I have with that is in the correspondence I received directly from Ms. LeGro, and I take it obviously from Ms. Hake that there has been subsequent correspondence, but, of 8
WM1A 239802v3 12/20/07
Case 1:07-cv-00511-LPS
Document 26
Filed 12/20/2007
Page 12 of 19
course, the court hasn't seen it, she was reluctant at best to give her claim, and in fact, seems to be willing to give up her claim only upon some sort of assurance as to whether the documents that insurance company has received were actually executed as they appeared to have been executed. See Exhibit "H" at p. 5, lines 11-19. On November 25, 2007, Myung received another threatening letter from Withrow. See Letter from James R. Withrow to Myung Pham LeGro dated November 25, 2007 attached hereto as Exhibit "I". In this letter, Withrow made a number of false allegations against Myung attacking her character, saying that she took advantage of her frail sister for her own financial gain, and notifying her that he would tell her family what she had allegedly done. See Exhibit "I" at p. 1 ("Lieu will testify that you called and promised her a share of the insurance if it was awarded to you. This call was made well after Lisa's death! Some of your family believe that the reason you are continuing the insurance claim is because of the costs of Theodora's college expenses ($44,000 per year)"); see also Exhibit "I" at p. 2 ("I have already talked to Linda this past week. She has promised to fly her from Colorado to the trial to testify against you. In her opinion, you are quite capable of pulling some [] con or scam to get Lisa's life insurance."). Upon reading Withrow's letter and consulting with her husband, Myung decided that she must challenge Withrow in order to clear her name. Withrow had gone so far as to spread lies to Myung's family. At Lisa's funeral, Withrow told Myung's sister and brother to call Myung's family in Vietnam and tell them that Myung had stolen $80,000 from the Policy and that they would have to return the money or be in serious trouble with the police. Myung could not let her name be tarnished in this way. Myung retained Fox Rothschild LLP as counsel in this action and consented to this Court's jurisdiction on November 29, 2007. Myung filed her Answer to the
9
WM1A 239802v3 12/20/07
Case 1:07-cv-00511-LPS
Document 26
Filed 12/20/2007
Page 13 of 19
Interpleader Complaint on December 7, 2007. This is Myung's Response to James R. Withrow's Motion to Enforce Stipulated Judgment and Order.1 IV. ARGUMENT A. Standard of Review A motion to enforce a settlement agreement closely resembles a motion for summary judgment, therefore, a similar standard applies. Tierman v. Deroe, 923 F.2d 1024, 1031 (3d Cir. 1991). "The Court must treat all the non-movant's assertions as true, and `when these assertions conflict with those of the movant, the former must receive the benefit of the doubt." In re Elonex Phase II Power Mgmt. Litig., 2003 WL 21460391 (D.Del. 2003). B. The Stipulated Judgment And Order is Not Valid or Enforceable Under Delaware Law.
Myung did not enter into a valid and binding settlement agreement under Delaware law. "It is a well established principle of contract law that if either party knows or has reason to know that the other party regards the agreement as incomplete and intends that no obligation shall exist until other terms are assented to . . . the preliminary negotiations and agreements do not constitute a contract." Intellisource Grp., Inc. v. Williams, 1999 WL 615114, at *5 (D.Del. Aug. 11, 1999). Myung's letter to US Life dated September 27, 2007 reflects that she wanted
assurances that no forgery or fraud had occurred before entering into the Stipulated Judgment and Order: However, before I sign the agreement you sent to me, I wish to be assured that you have had the form my sister signed naming my the beneficiary carefully examined. I have reason to suspect that it has been altered to mislead and to reflect that my sister signed it on the
1
Attached hereto as Exhibit J and incorporated by reference is the affidavit of Myung Pham Legro in support of the Response In Opposition To Motion To Enforce Stipulated Judgment And Order.
10
WM1A 239802v3 12/20/07
Case 1:07-cv-00511-LPS
Document 26
Filed 12/20/2007
Page 14 of 19
day before her death, when in fact I believe she signed it at least two days before she died . . . I do not want to fight for this money, to endure the stress of a trial far from my home, or to see Mr. Withrow or Delaware ever again. But I do not believe he should profit from fraud or forgery. That is what I believe may be happening here. If you can assure me that the circled date, "5/23/07," was written on the original document by my sister, and that this has been confirmed by a qualified expert, I shall sign the agreement you sent me. See Exhibit "E". A reasonable person would not conclude that Myung had relinquished her rights to the proceeds of the Policy. See Leonard v. University of Delaware, 204 F.Supp.2d 784, 787 (D.Del. 2002) ("Under Delaware law, a contract `comes into existence if a reasonable person would conclude, based on the objective manifestations of assent and the surrounding circumstances, that the parties intended to be bound by their agreement on all essential terms."). She wanted further assurances that fraud had not taken place. Moreover, she was not represented by an attorney, and she continually expressed reservations about entering into the Stipulate Judgment and Order. The Court did not sign the Stipulated Judgment and Order during its October 31, 2007 teleconference with the parties to this action for similar reasons: Well, the problem I have with that is in the correspondence I received directly from Ms. LeGro . . . she was reluctant at best to give up her claim, and in fact, seems to be willing to give up her claim only upon some sort of assurance as to whether the documents that insurance company has received were actually executed as they appeared to have been executed. See Exhibit "H" at p. 5, lines 11-19. Because the parties never reached a complete agreement, as exhibited by Myung's letter, the Stipulated Judgment and Order should not be enforced by the Court.
11
WM1A 239802v3 12/20/07
Case 1:07-cv-00511-LPS
Document 26
Filed 12/20/2007
Page 15 of 19
Moreover, the Court recognized the impropriety in giving effect to an alleged settlement agreement where one of the parties had expressed reservations with entering into the agreement. See Leonard, 204 F.Supp.2d at 786 ("[c]ourts should not summarily enforce purported settlement agreements, in the absence of an evidentiary hearing, where material facts concerning the existence or terms of an agreement to settle are in dispute."). In light of Myung and Withrow's differing factual accounts of the situation, the Court should not enforce an unsigned Stipulated Judgment and Order, but should instead conduct an evidentiary hearing in this matter. C. A Valid and Binding Contract Was Never Entered Into By The Parties.
Myung never entered into a valid contract with Withrow or US Life. As stated earlier, a reasonable person would not conclude that the parties mutually consented to the terms of the agreement. Myung continued to disagree with the forgery or fraud she believed has been committed and sought assurances that this issue would be rectified. See Exh. "E". Moreover, Myung received absolutely no consideration for her alleged agreement to relinquish her right to the proceeds of the Policy. See Haft v. Dart Grp. Corp., 841 F.Supp. 549, 573 (D.Del. 1993) ("It is a fundamental tenet of contract law that a valid contract requires good or valuable consideration.). "When consideration is lacking, there was never a contract at all." Id. at 573, n.30. Thus, a contract was never formed by the parties. Further, the Court never signed an the Stipulated Judgment and Order, making it unenforceable. D. The Stipulated Judgment and Order is An Unenforceable Contract Because Myung Has Met The Elements of The Defense of Duress.
"[A] lack of legal capacity or the existence of duress can lead a court to declare a promise unenforceable or a transfer voidable." Ryan v. Weiner, 610 A.2d 1377, 1380 (Del. Ch. 1992). To prove duress, a party must prove: "(1) an improper threat, (2) which overcame his free will, 12
WM1A 239802v3 12/20/07
Case 1:07-cv-00511-LPS
Document 26
Filed 12/20/2007
Page 16 of 19
and (3) left him with no reasonable alternative to protect his interest." Leonard v. University of Delaware, 204 F.Supp.2d 784 (D.Del. 2002). In this case, Myung was improperly threatened by Withrow, evident from his letter dated September 7, 2007. His letter states, in pertinent part: I look forward to confronting you in a court of law! It will certainly be a pleasure. Then when that procedure is settled, I will file another lawsuit against you for "Manipulation of a Mentally Infirm Person with the intent of financial gain . . . I will [e]nsure that we have a courtroom full of Lisa's family, friends, coworkers who knew us both quite well! Looking forward to a court date. See Exhibit "C" at p. 3. Her letter to US Life dated October 15, 2007, immediately prior to her signing of the Stipulated Judgment and Order, similarly reflects that Myung felt threatened into giving up her rights: Mr. Withrow has threatened me in writing, with a lawsuit after this case is resolved, and he has threatened the Playtex employees who witnessed my sister's signature on the change-of-beneficiary form. Perhaps he will relent after he receives the money. See Exhibit "G". Myung, a Vietnamese immigrant, was confused by the calls and letters she received from counsel for US Life. She did not have a lawyer. She was afraid of the threats by Withrow and did not understand the explanations that counsel for US Life provided to her. She was afraid that she would be sued and that her family would be drawn into the litigation. All of these factors overcame her free will and left her no reasonable alternative but to sign the Stipulated Judgment and Order.2
2
Her husband assisted her in drafting her letter to US Life dated June 16, 2007 explaining her side of the story. See Exhibit "B".
13
WM1A 239802v3 12/20/07
Case 1:07-cv-00511-LPS
Document 26
Filed 12/20/2007
Page 17 of 19
Similarly, the Court recognized that it was improper for the Court to enter the Stipulated Judgment and Order where Myung "was reluctant at best to give up her claim". See Exhibit "H" at p. 5, lines 12-13. The circumstances of this transaction raise an inference that some impropriety may have occurred. In regards to the defense of duress, the Court has stated that "there may be such unconscionable or inadequacy in a bargain, as to demonstrate some gross imposition or undue influence; and in such cases Courts of Equity ought to interfere upon satisfactory ground of fraud." Ryan, 610 A.2d at 1381. Withrow alleges that Myung relinquished her right to the proceeds of the Policy by signing the Stipulated Judgment and Order. Admittedly, she received no consideration for this relinquishment of her rights. See Withrow's Motion to Enforce
Stipulated Judgment at p. 8. Based upon the lack of any consideration, and the threats Withrow levied against Myung, impropriety did occur. Myung has demonstrated the elements of the defense of duress. Thus, the Court should hold the alleged settlement agreement entered unenforceable. E. Withrow Should Not Be Awarded Attorneys' Fees Associated With Bringing His Motion to Enforce Stipulated Judgment And Order. For
The cases cited by Withrow are inapposite to the circumstances of this case.
example, in In re: Elonex Phase II Power Mgmt. Litig., 2003 WL 21460391, at *3 (D.Del. 2003), the Court held that "refusal to abide by the terms of a settlement agreement may constitute bad faith, entitling the wronged party to attorneys' fees." Id. (internal citations omitted). However, the Court noted that the defendant's reasons for refusing to abide by the terms of the settlement agreement were "frivolous" where defendant refused to comply with its obligations without court intervention once, and again refused to comply a second time. Id. at *4.
14
WM1A 239802v3 12/20/07
Case 1:07-cv-00511-LPS
Document 26
Filed 12/20/2007
Page 18 of 19
Myung is not refusing to comply with the terms of the Stipulated Judgment and Order in bad faith. She has a valid, good faith reason to oppose Withrow's Motion, and her opposition to Withrow's Motion is by no means frivolous. "Attorneys' fees and costs are not ordinarily recoverable and unless specifically authorized by statute are awarded only in extraordinary cases." See Leonard, 204 F. Supp. at 789 (quoting Hobbs v. Am. Investors Mgmt., Inc., 576 F.2d 29, 35 (3d Cir. 1978)). Defendant cites Leonard for the proposition that attorneys' fees should be awarded. Withrow's Motion at p. 10. However, in that case, the Court labeled defendant's behavior "egregious", explaining: It can no be clearer to the court that Leonard is using settlement as the proverbial carrot, which he is tantalizingly dangling in front of the defendants, but has no intention of giving to them. Based on his new requests, and his earlier behavior, the court concludes that Leonard is not adverse to entering into a binding agreement with the defendants, watching the defendants fulfill their non-minimal obligations, and then later denying there is an agreement. Id. at 789-790. Thus, in Leonard, the Court sanctioned a defendant who used settlement to force the plaintiff to perform certain obligations, and then denied that a settlement agreement existed. Myung has not engaged in such "egregious" behavior. The facts of this case are in no way similar to the bad faith displayed by the defendants in Elonex or Leonard. Myung has a good faith argument that the Stipulated Judgment and Order should not be enforced. Therefore, the Court should not award Withrow with attorneys' fees associated with filing his Motion.
15
WM1A 239802v3 12/20/07
Case 1:07-cv-00511-LPS
Document 26
Filed 12/20/2007
Page 19 of 19
V.
CONCLUSION For all the foregoing reasons, Myung Pham LeGro respectfully request that the Court
deny James R. Withrow's Motion to Enforce Stipulated Judgment and Order.
FOX ROTHSCHILD LLP /s/ Seth A. Niederman, Esquire J. Breck Smith, Esquire (No. 2937) Seth Niederman, Esquire (No. 4588) Sophia Siddiqui, Esquire (No. 4914) Citizens Bank Center 919 N. Market Street, Suite 1300 Wilmington, DE 19801 (302) 622-4211 Attorneys for Defendant, Myung Pham Legro Date: December 20, 2007
16
WM1A 239802v3 12/20/07
Case 1:07-cv-00511-LPS
Document 26-2
Filed 12/20/2007
Page 1 of 49
EXHIBIT A
Case 1:07-cv-00511-LPS
Document 26-2
Filed 12/20/2007
Page 2 of 49
SEALED DOCUMENT
Case 1:07-cv-00511-LPS
Document 26-2
Filed 12/20/2007
Page 3 of 49
EXHIBIT B
Case 1:07-cv-00511-LPS
Document 26-2
Filed 12/20/2007
Page 4 of 49
Mytmg Pham LeGro 2018 Maleady Drive Herndon, Virginia 20170 16 June 2007 The United States Life Insurance Company Neptune, NJ 07754 Reference: Group policy # G214756 Gentlemen: Enclosed you will find my claim as beneficiary of the life insurance policy of my sister, Lisa Withrow, who passed away, her frail hand in mine, on 24 May, 2007. My sister's husband, James Withrow, has made some egregiously false statements about my sister and meand it is my duty to set the record straight. In late April, Lisa underwent major abdominal surgery for cancer. On 28 April my husband (Col. William E. LeGro, USA Ret.) and I drove up from our home in Virginia to visit her in the hospital. Shortly after we returned home, we called Mr. Withrow to tell him that I would return to visit Lisa again soon because she was alone and very unhappy. He told me to wait a few days because he was going to move her to a cancer recovery center in Wilmington. I was so worried for my sister that I called him a day or so later and he told us that he and their daughter had moved Lisa to a nursing home because they could not care for her at home, although they certainly had the resources to do so. My husband and I returned to Dover on the following weekend to visit her in the nursing home. She was very sad, feeling that she had been left there to die, abandoned by her husband and family. I assured her that if she were released, I would come up to stay with her in her home. About two days later Mr. Withrow called and told me that Lisa had checked herself out of the nursing home, and he asked for my help. The same day my husband drove me back to Delaware where I remained with my sister, night and day, until she died. I do not know when she made the decision to name me as beneficiary, but I recall clearly hearing her tell her husband that she was going to remove him as beneficiary. I was staying with her every moment, day and night, sleeping on the floor beside her bed, and caring for her every need. She told me that she was going to leave me a tittle money so I could continue to give money to her charities and help poor people in Vietnam, but she never told me how much money or how she was going to do it. I told her that I did not want to make any trouble in her family over money, that all I wanted was for her to get well and to be able to travel again to Vietnam and help the people herself. She said that her husband would get plenty of money from .her other policy and investments and I should not worry about that; she knew how to handle it. One Friday in May--I believe it was the 11 tu Mr. Withrow took her to conduct some business at the Social Security office. I went along to help her, and I was in the back seat of the car when she told him that he didn't need the money from her policy, the one on which she paid $11 per month, and that she was going to change to beneficiary. When we got home, she told me that she had asked someone at Playtex to mail a changeof-beneficiary form to her, and she asked me to check the mailbox for it. It never came.
Case 1:07-cv-00511-LPS
Document 26-2
Filed 12/20/2007
Page 5 of 49
Her condition worsened and she was readmitted to the hospital. I moved into the hospital room with her, sleeping on the couch, helping her with her meals, keeping her clean, and comforting her as best I could, not even leaving her room for meals. A few days after she was readmitted, a gentleman came to see her. She was sleeping at the time, so I asked him if he would like to wait until she awakened. He said that he could not but would come back again. Before he left he gave me brown emzelope to give to my sister. I showed the envelope to my sister when she woke up. She looked at the paper inside, put it back in the envelope, and asked me to put it in my bag until she asked for it. A day or so after the gentleman left, two ladies from Playtex came to visit. They apparently knew her well, for they embraced her and said some kind words to her. She asked me for the envelope, which I gave to her. The ladies helped my sister fill out the form. My sister asked me to give them my address and social security number, which I did. My sister signed the form, and I believe the ladies signed it as witnesses. Then the ladies said goodbye and left with the form. I was too emotionally and physically exhausted to attend the funeral but several of my relatives were there, including my brother and two of my sisters. They told me that Mr. Withrow raged about the policy, accused me of forgery and fraud, and swore to make the two ladies (to whom I refer above) support his position in the matter, although they would have to perjure themselves to do so. On 11 June, I received an envelope from Wilmington, Delaware. It has no return address so I don't know who sent it. It contained copies of two letters signed by an attorney engaged by Mr. Withrow to challenge my claim (should it be filed) and what appears to be an altered copy of the change-of-beneficiary form executed by my sister. (I have enclosed copies of these papers.) My sister's signature has been nearly completely wiped from the form, and it is possible that the date she signed it has been changed, because I believe she signed it at least two days before she died. In any case, the attorney's assertions that my sister was not competent to execute this change, that I "had" her make the change, are patently false and slanderous. She made the decision to name me beneficiary long before she was under any sedation, without discussing it with me, and she was fully aware when she signed the document and "competent" until her final hour. To refuse to honor her decision would dishonor her memory. Lisa Withrow was a kind and generous person, a loving mother and a loyal and devoted wife. She worked tirelessly to improve the living standards of her family. She died with dignity and in full command of her faculties. It was her dying wish that I would continue her charities, helping the poorest people and children in Vietnam, which I shall do in her name whether or not I am awarded this benefit. I went to Delaware not to be rewarded, but because I loved my sister and wanted to help her live, and I remained with her to give her love and comfort as she endured pain and faced death. Very sincerely yours, Myung P. LeGro Enclosed: Communications from Kevin Guerke cc: Jennifer Warren
Case 1:07-cv-00511-LPS
Document 26-2
Filed 12/20/2007
Page 6 of 49
EXHIBIT C
Case 1:07-cv-00511-LPS
Mov 2S 07 07:00a
Document 26-2
Filed 12/20/2007
703-707-0023
Page 7 of 49
William E. LeGro
FROM:
JAMES R. WITHROW 1077 Skeeter Neck Road Frederica DE 19946
7 September 2007
T0:
MYUNG PHAM LEGRO 2018 Maleady Drive Herndon VA 20170
I had convinced myself earlier never to again communicate with you. But, I want you to think about some things while awaiting a court date. As promised, I have hired one of the best law firms in Delaware. As pmomised, I am challenging the change of benefits on 23 May 200'7 aud Lisa's co~,~i?e-t:ency to execute ths.t document. The case will be handled bv a U.S. District Court in Delawame. I look forward to the opportunity of a JURY TRIAL. I will have your sisters/brothers present "to attest to your character and "to offer their opinions as to the change of the life insurance beneficiary desiznation. i have two witnesses that will testify that, when I asked if you had. notified The of Lisa's dea-~h, you responded that you had. Had I not called The on Sunday, Lisa would have been huried without his knowledge (making it appear that was his intent not to attend services and pay last respects). But, obviously that was your intent. The will ce_~tainly be present : i'm sure that you will appreciate the testimony of your sister, Linda~ as -to your character. Then, there are the opinions of both the Sumgeon and PCP relating to. Lisa's competency on on 23 May 2007~ Next, there are the many Playtex Coworkers~supervisor! And~ finally, you forget that, on 21 May 2007, the hospital had determined that Lisa was not competent sufficiently to authorize the procedures sched,~led for. that day. I signed. as her husb~nd/].egal representative on that date. Again, I had to sign for her on 23 May 2007 releasing her to hospice.
Case 1:07-cv-00511-LPS
Nov 29 07 07:00a
Document 26-2
Filed 12/20/2007
703-707-0023
Page 8 of 49
p.3
William E. LeGmo
But, the best part of a jury case will be revealing your motivations for having the life insurance beneficiary designation change! You'll just have to wait until we appear in court to know what I have planned in this respect, Although it sho~id be rather obvious. I am doing this because I trusted you. Never in my wildest imagi, nation would I have thought that you would have Lisa change her life insurance -to you under the circumstances. Had Lisa discussed this with me, I would have had no problem with it at a].l. Had she asked me to shamegthe ~nsurance proceeds with you, I would certainly have ho~ored her wishes. But, to have it done secretly without my knowlege was a violation of a sacred trust!. Then, although you. came so much for your dear- sis±em, you (and none of your family) came to pay your last respects. " I'm sure that you have your own logical excuses. But, just imagine in a cou~how this will be perceived. If you eared so much, and Lisa cared so much for you as to have given you her life insurance, what wouid be ~n acceptable reason for not attending services/funeral/burial. Remember that on Friday after Lisa's death, I inquired as to when you and Bill would be returning. I advised that I wanted the services on Monday. Bill responded that he would probably have to work at Home Depot! Then there is the issue of you having Theodora send flowers to Lisa on Mothers' Day.. That was an insult. It was not our custom to give each other flowers. Lisa always insisted on money for all holidays to go to Dover Downs! In hindsight, it was rather obvious what you needed the money for. And, you presun~ed that the amount was much higher than the $36,400.00. I am told that you called and discussed amounts,, etc with family in Vietnam.
Case 1:07-cv-00511-LPS
Nov 29 07 07:00a
Document 26-2
Filed 12/20/2007
703-707-0023
Page 9 of 49
William E. LeGro
Then, thre is the feedback as to discussions, characterizations, etc., that you relayed to the family in Vietnam. To the majority of youm family, you are now considered as the "evil one" I look forward to confronting you in a court of law! It will certainly be a pleasure. Then, when that procedure is settled, I will file another lawsuit against you for "Manipulation o£ a Mental.ly Infirm Person with the intent of financial gain". Discuss this one with your attorney.,.considerJng that hem treating physicians/ health care providers opinion is that Lisa was not competent on 23 May 2007! I will insure "that ~/$ have a courtroom full .of Lisa's family, friends, coworkers ~ho ]
Case 1:07-cv-00511-LPS
Document 26-2
Filed 12/20/2007
Page 10 of 49
EXHIBIT D
Case 1:07-cv-00511-LPS
Document 26-2
Filed 12/20/2007
Page 11 of 49
ASHBY ~ GEDDES
ATTORNEYS AND COUNSELLORS AT LAW
500 DELAWARE AVENUE P. O. BOX 1150 WILMINGTON, DELAWARE 19899
TELEPHONE 302-654-1888 FACSIMILE 302- 654-2067
September 21, 2007 VIA FEDERAL EXPRESS Myung Pham LeGro 2018 Maleady Drive Herndon, Virginia 20170
Re:
The United States Life' Ins. Co. in the City of New York v. James R. Withrow and Myung Pham LeGro¢ C.A. No. 07-511
Dear Ms. LeGro: Enclosed is the draft Stipulated Judgment and Order that I discussed with your husband on the telephone last week. Please review it and if you agree with the terms, please give me a call. Also, as I indicated on the phone to your husband, I represent The United States Life Insurance Company in the City of New York's interests only and my sole advice to you is to obtain an attorney if you so desire. Based on my conversation with your husband, it is my understanding that you wish to enter into this arrangement. If I am not correct, please let me know immediately and US Life will proceed with this case. Finally, US Life has agreed to give the defendants in this action an extension of time to respond to the Interpleader Complaint (and US Life's Motion for an Order authorizing payment of funds into Court, granting attorneys' fees and authorizing discharge from further liability and dismissal from action) until September 28, 2007 to allow the parties time to finalize and enter into the Stipulated Judgment and Order. In the event that the Stipulated Judgment and Order is not finalized prior to September 28th, we can discuss a further extension of time if necessary. I look forward to hearing from you soon. Very truly yours,
Carolyn S. Hake Enclosure
184400.1
Case 1:07-cv-00511-LPS
Document 26-2
Filed 12/20/2007
Page 12 of 49
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE THE UNITED STATES LIFE INSURANCE COMPANY IN THE CITY OF NEW YORK, Plaintiff, C.A. No. 07-511 (***) JAMES R. WITHROW and MYUNG PHAM LEGRO, Defendants.
STIPULATED JUDGMENT AND ORDER WHEREAS, on August 21, 2007, Plaintiff, The United States Life Insurance Company in the City of New York ("US Life"), filed this interpleader action pursuant to Fed. R. Civ. P. 22 and 28 U.S.C. § 1335 against Defendants James P. Withrow and Myung Pham LeGro in order to obtain a Court determination as to the proper claimant to the life insurance benefits under the combined basic and supplemental life insurance policy that US Life issued to Lisa P. Withrow in the amount of $36,400.00 (the "Policy"); and WHEREAS, US Life has been caused to expend approximately $1,425.00 in fees and expenses in its attempt to determine which party was entitled to Ms. Withrow's life insurance benefits under the Policy (the "Proceeds"); and WHEREAS, the parties have agreed to settle this action by agreeing to this form of stipulated judgment (the "Stipulated Judgment"); and WHEREAS, the parties consent to this Court's entry of the Stipulated Judgment; IT IS HEREBY STIPULATED, ORDERED, ADJUDGED AND DECREED that:
Case 1:07-cv-00511-LPS
Document 26-2
Filed 12/20/2007
Page 13 of 49
Judgment is hereby entered in favor of Defendant James P. Withrow and against Defendant Myung Pham LeGro.
o
US Life is entitled to reimbursement of costs and attorneys' fees in the amount of $1,425.00, which is to be paid out of the Proceeds.
°
US Life is directed to disburse the remaining Proceeds under the Policy, amounting to $34,975.00, to James P. Withrow, solely.
o
US Life is hereby discharged from any and all claims relating to or concerning the Policy and/or the Proceeds. Defendant James P. Withrow and Defendant Myung Pham LeGro are permanently enjoined from instituting any proceeding or action against US Life relating to or concerning the Policy and/or the Proceeds.
°
The entry of this Stipulated Judgment shall constitute a final judgment in this action, provided however that the Court shall retain jurisdiction over this matter for the purpose of enforcing this Stipulated Judgment among the parties.
ASHBY & GEDDES
SEITZ VAN OGTROP & GREEN P.A.
Richard D. Heins (#3000) Carolyn S. Hake (#3839) 500 Delaware Avenue, 8th F1. P.O. Box 1150 Wilmington, DE 19899 (302) 654-1888
Kevin A. Guerke (#4096) 222 Delaware Avenue Suite 1500, Box 68 P.O. Box 68 Wilmington, DE 19899 (302) 888-0600
Attorneys for United States Life Insurance Attorneys for James P. Withrow ¯ Company in the City of New I~ork
Case 1:07-cv-00511-LPS
Document 26-2
Filed 12/20/2007
Page 14 of 49
Myung Pham LeGro
2018 Maleady Drive Herndon, Virginia 20170 Myung Pham LeGro
Dated: September__, 2007
SO ORDERED this
day of
,2007.
United States District Judge
184065.1
Case 1:07-cv-00511-LPS
Document 26-2
Filed 12/20/2007
Page 15 of 49
EXHIBIT E
Case 1:07-cv-00511-LPS
Document 26-2
Filed 12/20/2007
Page 16 of 49
Myung Pham LeGro 2018 Maleady Drive Herndon, VA 20170 27 September 2007 Ashby and Geddes 500 Delaware Ave PO Box 1150, Wilmington, DE 19899 Ms. Carolyn S. Hake Case Number 07-511 Dear Ms. Hake: I have told you that I intend to relinquish my right as beneficiary of my late sister's insurance policy, and I still plan to do so. However, before I sign the agreement you sent to me, I wish to be assured that you have had the form my sister signed naming me the beneficiary carefully examined. I have reason to suspect that it has been altered to mislead and to reflect that my sister signed it on the day before her death, when in fact I believe she signed it at least two days before she died. I have never seen the original "Group Insurance Beneficiary Designation," but I received, from a source unknown to me, a reproduced copy on which my sister's signature has been obliterated, and the date "5/23/07" has been entered and circled. This date does not appear to be in my sister's hand, and the date is wrong. I believe she signed it not later than the 22no. You should be able to confirm this through the persons from Playtex who witnessed her signature. I have enclosed my letter of 16 June to the insurance company, in which I accurately summarize the facts about the change of beneficiary that my sister executed at least two days before she passed away. Mr. Withrow's assertion that she was too heavily sedated to do this without my help and urging is terribly wrong, and he knows it. She was not heavily sedated until her final few hours of life. I have enclosed the altered form, which came in an envelope postmarked, "Wilmington." which also contained two letters from Mr.Withrow's lawyers. I do not want to fight for this money, to endure the stress of a trial far from my home, or to see Mr. Withrow or Delaware ever again. But I do not believe he should profit from fraud or forgery. That is what I believe may be happening here. If you can assure me that the circled date, "5/23/07," was written on the original document by my sister, and that this has been confirmed by a qualified expert, I shall sign the agreement you sent to me. ~ Sincerely,
Myung Pham LeGro cc: Clerk of the United States District Court, District of Delaware
Case 1:07-cv-00511-LPS
Document 26-2
Filed 12/20/2007
Page 17 of 49
EXHIBIT F
Case 1:07-cv-00511-LPS
Document 26-2
Filed 12/20/2007
Page 18 of 49
ASHBY & GEDDES
ATTORNEYS /',NO COUNSELLORS AT LAW
500 DELAWARE AVENUE P. O. BOX 1150 WILMINGTON, DELAWARE 19899
TELEPHONE 302-~$54-188 S FACSIMILE 302-654-2067
October 4, 2007 VIA FEDERAL EXPRESS Myung Pham LeGro ¯ 2018 Maleady Drive Herndon, Virginia 20170 Re: The United States Life Ins. Co. in the City of New York v. James R. Withrow and Myung Pham LeGro; C.A. No. 07-511
Dear Ms. LeGro: We write in response to your letter dated September 27, 2007, which we received on October 1, 2007. In the letter, you request certain assurances from our client, The United States Life Insurance Company in the City of New York ("US Life"), before you agree to sign the Stipulated Judgment and Order. US Life is not in the position to provide any assurances to either Mr. Withrow or you in this matter. Specifically, US Life is a mere stakeholder with no interest in the proceeds of Lisa Withrow's life insurance benefits (the "Proceeds") under the policy Ms. Withrow had with US Life (the "Policy"). Because Mr. Withrow and you both claimed the right to the Proceeds, US Life brought the interpleader action in the District Court for the District of Delaware to determine the proper claimant of the Proceeds. Furthermore, the enclosed Stipulated Judgment and Order was drafted entirely because you (and your husband) indicated to me that you no longer wanted to challenge Mr. Withrow's claim to the Proceeds. Based upon those telephone conversations, it was my understanding that you wished to enter into this arrangement. If you no longer wish to sign the Stipulated Judgment and Order, which is entirely your prerogative, this litigation will be necessary to resolve the competing disputes over the Proceeds of the Policy. Please be further advised that US Life is seeking reimbursement of its costs and attorneys' fees incurred in connection with the action. See Everitt v. Everitt, Del. Supr., 146 A.2d 388, 393 (1958). To allow you time to decide how you would like to proceed and/or for you to retain counsel, US Life also will agree to give you (and Mr. Withrow) a further extension of time until November 1, 2007 to respond to the Interpleader Complaint (and US Life's Motion for an Order authorizing payment of funds into Court, granting attorneys' fees and authorizing, discharge from
Case 1:07-cv-00511-LPS
Document 26-2
Filed 12/20/2007
Page 19 of 49
Myung Pham LeGro October 4, 2007 Page 2 of 2 further liability and dismissal from action (the "Motion")). I have enclosed a Stipulation and Order formalizing that extension for your signature (the "Stipulation of Extension"). If you agree to the terms of this document, please return it to me in the self-addressed, stamped envelope for filing with the Court. In the event that you do not wish to sign the Stipulated Judgment and Order, your responses to US Life's Interpleader Complaint and Motion will be due to be filed with the Delaware District Court on November 1, 2007, assuming that the Stipulation of Extension is approved by the Court and no further extensions are granted. Finally, as I indicated on the phone to your husband and you, we represent The United States Life Insurance Company in the City of New York's interests only and our sole advice to you is to obtain an attorney if you so desire. We look forward to hearing from you soon. Very truly yours,
Carolyn S. Hake Enclosures cc: Kevin A. Guerke, Esquire (via hand delivery; w/encls.)
184633.1
Case 1:07-cv-00511-LPS
Document 26-2
Filed 12/20/2007
Page 20 of 49
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE THE UNITED STATES LIFE INSURANCE COMPANY IN THE CITY OF NEW YORK, Plaintiff, C.A. No. 07-511 (***) JAMES R. WITHROW and MYUNG PHAM LEGRO, Defendants.
STIPULATED JUDGMENT AND ORDER WHEREAS, on August 21, 2007, Plaintiff, The United States Life Insurance Company in the City of New York ("US Life"), filed this interpleader action pursuant to Fed. R. Civ. P. 22 and 28 U.S.C. § 1335 against Defendants James P. Withrow and Myung Pham LeGro in order to obtain a Court determination as to the proper claimant to the life insurance benefits under the combined basic and supplemental life insurance policy that US Life issued to Lisa P. Withrow in the amount of $36,400.00 (the "Policy"); and WHEREAS, US Life has been caused to expend approximately $1,425.00 in fees and expenses in its attempt to determine which party was entitled to Ms. Withrow's life insurance benefits under the Policy (the "Proceeds"); and WHEREAS, the parties have agreed to settle this action by agreeing to this form of stipulated judgment (the "Stipulated Judgment"); and WHEREAS', the parties consent to this Court's entry of the Stipulated Judgment; IT IS HEREBY-STIPULATED, ORDERED, ADJUDGED AND DECREED that:
Case 1:07-cv-00511-LPS
Document 26-2
Filed 12/20/2007
Page 21 of 49
Judgment is hereby entered in favor of Defendant James P. Withrow and against Defendant Myung Pham LeGro, US Life is entitled to reimbursement of costs and attorneys' fees in the amount of $1,425.00, which is to be paid out of the Proceeds. US Life is directed to disburse the remaining Proceeds under the Policy, amounting to $34,975.00, to James P. Withrow, solely.
o
US Life is hereby discharged from any and all claims relating to or concerning the Policy and/or the Proceeds. Defendant James P. Withrow and Defendant Myung Pham LeGro are permanently enjoined from instituting any proceeding or action against US Life relating to or concerning the Policy and/or the Proceeds. " The entry,of this Stipulated Judgment shall constitute a final judgment in this action, provided however that the Court shall retain jurisdiction over this matter for the purpose of enforcing this Stipulated Judgment among the parties.
ASHBY & GEDDES
SEITZ VAN OGTROP & GREEN P.A.
Richard D. Heins (#3000) Carolyn S. Hake (#3839) 500 Delaware Avenue, 8tu F1. P.O. Box 1150 Wilmington, DE 19899 (302) 654-1888 Attorneys for United States Life Company in the City of New York Insurance
Kevin A. Guerke (#4096) 222 Delaware Avenue Suite 1500, Box 68 P.O. Box 68 Wilmington, DE 19899 (302) 888-0600 " Attorneys for James P. Withrow
Case 1:07-cv-00511-LPS
Document 26-2
Filed 12/20/2007
Page 22 of 49
Myung Pham LeGro
2018 Maleady Drive Hemdon, Virginia 20170 Myung Pham LeGro
Dated: October __, 2007
SO ORDERED this
day of
,2007.
United States Magistrate
184065.1
Case 1:07-cv-00511-LPS
Document 26-2
Filed 12/20/2007
Page 23 of 49
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE THE UNITED STATES LIFE INSURANCE .COMPANY IN THE CITY OF NEW YORK, Plaintiff,
V.
' C.A. No. 07-511 (***)
JAMES R. WITHROW and MYUNG PHAM LEGRO, Defendants.
STIPULATED ORDER. IT IS HEREBY STIPULATED AND AGREED, subject to the approval and order of the Court, that the date by which defendants must answer, move, or otherwise respond to the interpleader complaint in this matter is extended through and including November 1, 2007; and IT IS HEREBY FURTHER STIPULATED AND AGREED, subject to the approval and order of the Court, that the date by which defendants must file and serve their answering briefs in opposition to plaintiff The United States Life Insurance Company in the City of New York's Motion for an Order Authorizing Payment of Funds into Court, Granting Attorneys' Fees and Authorizing Discharge from Further Liability and Dismissal from Action is extended through and including November 1, 2007.
Case 1:07-cv-00511-LPS
Document 26-2
Filed 12/20/2007
Page 24 of 49
ASHBY & GEDDES
SEITZ VAN OGTROP & GREEN P.A.
Richard D. Heins (#3000) Carolyn S. Hake (#3839) 500 Delaware Avenue, 8th FI. P.O. Box 1150 Wilmington, DE 19899 (302) 654-1888 Attorneys for United States Life Insurance Company in the City of New York MYUNG PHAM LEGRO
Kevin A. Guerke (#4096) 222 Delaware Avenue Suite 1500, Box 68 P.O. Box 68 Wilmington, DE 19899
(302) 888-0600
Attorneys for James P. Withrow
2018 Maleady Drive Hemdon, Virginia 20170 Myung Pham LeGro
¯ Dated: October__, 2007
SO ORDERED this
day of
,2007.
United States Magistrate
i 84662.1
2
Case 1:07-cv-00511-LPS
Document 26-2
Filed 12/20/2007
Page 25 of 49
EXHIBIT G
Case 1:07-cv-00511-LPS
Document 26-2
Filed 12/20/2007
Page 26 of 49
Myung Pham LeGro 2018 Maleady Drive, Herndon, VA 20170 15 October 2007 Carolyn S. Hake, Ashby & Geddes 500 Delaware Ave. PO Box 1150 Wilmington, DE 19899 Dear Ms. Hake: I shall not participate in the teleconference. I have nullified my entitlement to the proceeds of the policy. You may disburse the proceeds as you see fit. I want nothing more to do with this case or with Mr. Withrow. It is not my way, or the Vietnamese way, to participate publicly in a family dispute. Mr. Withrow has threatened me, in writing, with a lawsuit after this case is resolved, and he has threatened the Playtex employees who witnessed my sister's signature on the change-of-beneficiary form. Perhaps he will relent after he receives the money. In relinquishing my rights, I have made it clear that Mr. Withrow's claim is based upon lies. The basic canard is in paragraph 9 of your "BACKGROUND" paper, in which the date of the change 0f beneficiary is given as 23 May, the day before she died. To set the record straight, in my presence Lisa told her husband several days before, while we were driving to an appointment, that she was going to remove him as beneficiary. A few days later in the hospital a man from Platex brought my sister a change-of-beneficiary form, which she asked me to safeguard for her in my luggage. (I was caring for her in her hospital room, 24 hours every day, sleeping on a couch.) Then, two or three days before she died, two ladies from Platex came to visit her. She asked me to bring the form to her, which she and the two ladies signed. They left with the form. If they have not succumbed to Mr. Withrow's threats, they would testify to the truth of what I have told you, and they would tell you that my sister was completely lucid and competent to make this decision. I believe that the document my sister signed has been criminally altered to reflect the date of 23 May. Why did my sister make me the beneficiary? To be blunt, she hated her husband, and she told me so and why. This was her way to punish him and her daughter for abusing her during her last days on earth. Mr.Withrow and her daughter knew she was dying. They said they could not care for her at home, so they put her in a nursing home to die. She was desperately unhappy there. She signed herself out and asked a friend to take her home so I could care for her. Mr. Withrow asked me to come so I left my husband and daughter in Virginia and went to my sister's home, caring for her every need, day and night, sleeping on the floor beside her bed until she began to need more medical attention and was readmitted to the hospital. I was there by her side constantly. I did not leave even to eat, losing 20 pounds, snacking on crackers and whatever else was in the vending machines in the hall. Thank you, Ms. Hake, for your patience with me, and for listening to me. I know you are only doing your duty to your client in accordance with the law.
Case 1:07-cv-00511-LPS
Document 26-2
Filed 12/20/2007
Page 27 of 49
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE THE UNITED STATES LIFE INSURANCE COMPANY IN THE CITY OF NEW YORK, Plaintiff,
JAMES R. WITHROW and MYUNG PHAM LEGRO, Defendants.
) ) ) ) ) ) ) ) ) ) ) )
C.A. No. 07-51 l (***)
STIPULATED JUDGMENT AND ORDER WHEREAS, on August 21, 2007, Plaintiff, The United States Life Insurance Company in the City of New York ("US Life"), filed this interpleader action pursuant to Fed. R. Civ. P. 22 and 28 U.S.C. § 1335 against Defendants James P. Withrow and Myung Pham LeGro in order to obtain a Court determination as to the proper claimant to the life insurance benefits under the combined basic and supplemental life insurance policy that US Life issued to Lisa P. Withrow in the amount of $36,400.00 (the "Policy"); and WHEREAS, US Life has been caused to expend approximately $1,425.00 in fees and expenses in its attempt to determine which party was entitled to Ms. Withrow's life insurance benefits under the Policy (the "Proceeds"); and WHEREAS, the parties have agreed to settle this action by agreeing to this form of stipulated judgment (the "Stipulated Judgment"); and WHEREAS, the parties consent to this Court's entry of the Stipulated Judgment; IT IS HEREBY. STIPULATED, ORDERED, ADJUDGED AND DECREED that:
Case 1:07-cv-00511-LPS
Document 26-2
Filed 12/20/2007
Page 28 of 49
Judgment is .hereby entered in favor of Defendant James P. Withrow and against Defendant Myung Pham LeGro. US Life is entitled to reimbursement of costs and attorneys' fees in the amount of $1,425.00, which is to be paid out of the Proceeds. US Life is directed to disburse the remaining Proceeds under the Policy, amounting to $34,975.00, to James P. Withrow, solely. US Life is hereby discharged from any and all claims relating to or concerning the Policy and/or the Proceeds. Defendant James P. Withrow and Defendant Myung Pham LeGro are permanently enjoined from instituting any proceeding or action against US Life relating to or concerning the Policy and/or the Proceeds. " The entry of this Stipulated Judgment shall constitute a final judgment in this action, provided however that the Court shall retain jurisdiction over this matter for the purpose of enforcing this Stipulated Judgment among the parties.
ASHBY & GEDDES
SEITZ VAN OGTROP & GREEN P.A.
Richard D. Heins (#3000) Carolyn S. Hake (#3839) 500 Delaware Avenue, 8t~ Fl. P.O. Box 1150 Wilmington, DE 19899. (302) 654-1888 Attorneys for United States Life Company in the City of New York
Inst, trartce
Kevin A. Guerke (#4096) 222 Delaware Avenue Suite 1500, Box 68 P.O. Box 68 Wilmington, DE 19899 (302) 888-0600 Attorneys for James P. Withrow
Case 1:07-cv-00511-LPS
Document 26-2
Filed 12/20/2007
Page 29 of 49
Myung Pham LcCrro
2018 ~alc~y Dr~ve Hcrndon, Virginia 20170 Myung Pham LeGro
Dated: October__, 2007
SO ORDERED this
dayof
,2007.
United States Magistrate
184065.1
Case 1:07-cv-00511-LPS
Document 26-2
Filed 12/20/2007
Page 30 of 49
EXHIBIT H
Case 1:07-cv-00511-LPS
Document 26-2
Filed 12/20/2007
Page 31 of 49
1 2 3 4 5 6 7 8
IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF DELAWARE
UNITED STATES LIFE INSURANCE COMPANY IN THE CITY OF NEW YORK, Plaintiff,
V.
CIVIL ACTION
JAMES R. WITHROW and MYUNG PHAM LEGRO, NO. Defendants. 07-511 (***)
9 I0 ii 12 13 14 APPEARANCES: 15 16 17 18 19 20 21 22 23 24 25 Brian P. Gaffigan Registered Merit Reporter SEITZ, VAN OGTROP & GREEN, P.A. BY: KEVIN A. GUERKE, ESQ. Counsel for James R. Withrow ASHBY & GEDDES, P.A. BY: CAROLYN SHELLY HAKE, ESQ. Counsel for Plaintiff BEFORE: HONORABLE
United States Free Forms
Canada Free Forms
United Kingdom Free Forms
Australia Free Forms